Sexual history in rape cases - its uses and restrictions as described in UK Law Student Review paper.

In the wake of the Ched Evans appeal, retrial and his subsequent acquittal last Friday there has been a lot of media comment about whether it was right for the Court of Appeal judges to quash the original conviction and allow sexual history evidence about the complainant into a retrial.

The document I link to here is something I read last night which lays out in detail the case for restricting sexual history evidence and also the criteria by which the defence can apply to have it exempted from the restrictions.

I did not find the paper particularly reassuring - the cases described seem to, like the Ched Evans trial, equate behaving in a similar way in a consensual situation as giving grounds for the accused to have reasonable doubt where consent was claimed by the defence and denied by the complainant or the prosecution (as in this case).

The paper also says that there is a lot of confusion about the law and these restrictions, even among judges and barristers.

This paper, although fairly heavy reading, gives a lot of food for thought. It is quite critical of the idea of restricting sexual evidence overall, though the author believes there should be a balanced approach.

I would welcome all opinions on this for an open-minded discussion, because it is a critical issue for women in rape cases, and far too many legal opinions on this following the CE case are dismissive, patronising and accuse womens' groups and journalists of scaremongering and discourage women from reporting rape on false grounds. I am concerned about this as I feel they are merely naming a problem and the problem is with the legal system, and situations like this are exactly what discourage women from reporting rape.

The Scottish Executive (2000) also explored this issue in its discussion of the law on sexual history evidence. The report’s authors noted the following commonplace beliefs that are often deployed in legal reasoning – and indeed were evident in debates on section 41:

• Someone who has had sex with persons A and B is more likely to have sex with person C.• Someone who is ‘sexually promiscuous’ has less right than someone who is not to choose who they have sex with.• Someone who is ‘sexually promiscuous’ is generally less trustworthy, and therefore less likely to be telling the truth.• Women have a tendency to ‘lead men on’ and are therefore to blame if men fail to resist their physical impulses.• When women say ‘no’ they do not always mean it.• False allegations of rape and sexual assault are more common than false allegations of other crimes.

So it makes clear that lawyers themselves display these prejudices.

The Scottish Executive report concluded that all these statements not only have no foundation in fact, they are also “both illogical and at odds with any system of morality which places a value on the individual’s right to self-determination” (Scottish Executive, 2000, p.6). It considered that the frequency with which these ideas are “constantly reiterated” amounts to a form of prejudice which can result in the complainant being treated with a lack of respect and in the worst cases being publicly humiliated.

Arguably, every case which admits this sexual history evidence contributes cumulatively to this prejudice. It legitimises these beliefs.

Alongside, and reinforcing, myths and stereotypes about women’s unreliability as witnesses on sexual matters, are notions of women’s culpability when victims of sexual aggression. Depending on their actions at the time or their reputation they are located inside or outside the category of ‘victim’. Included here are:

implicit presumptions about how a reasonable woman should respond to sexual aggression; persisting stereotypes of good/bad women (the madonna/whore binary); and traditional notions about sexual agency on the part of men which is a sign of health and virility, whereas female sexual agency is a marker of low morals and ‘promiscuity’ (Jordan, 2004). There is also a longstanding construction of heterosexuality that presumes that men will seek sexual activity, and that it is the responsibility of women not only to set, but also to enforce, limits (Lees, 1993).

And just to add to all these resources a comment piece yesterday by Vera Baird QC, who campaigned for the original change in the law. Among other things she says:

Campaigning for change in the late 90s, I wrote a pamphlet called Rape in Court and mentioned research by a Canadian academic who showed that the chances of a conviction in a rape trial were inversely proportional to the extent of sexual allegations made against a complainant. The more there was alleged, even if every bit of it was denied, the less the chance of a conviction. Add to that Lord Steyn’s view, and it is clear that many acquittals were gained by prejudice.

The clause utilised by lawyers for Evans was only added towards the end of the 1999 bill’s progress through parliament. It reversed the exclusion of sexual history evidence – if what the defendant alleged was sex between the complainant and another that was “so similar” to what was alleged in the rape that it could not be explained by coincidence. It has hardly ever been used.

The key case in which it was used concerned a couple having consensual sex, standing upright inside a children’s climbing frame. It was alleged that on a second such occasion, with the same partner, it was rape.

This climbing frame case is also referred to in the Evans appeal judgement. I can find very little. It was an appeal case and the appeal was allowed because the original judge had rejected the evidence under the wrong subsection of section 41.

But let's look at it this way. Why would the fact that you had previously had consensual sex in a climbing frame (or any specific location) mean that you were more likely to be lying when you said you had also been raped in one later by the same person? Why is that relevant to whether she consented? Why does a history of having consensual sex in other public places suggest that your evidence that you didn't consent on a different occasion is not credible?

Thanks Datun. I'm so tired of being patronised that I don't understand the law and having my legitimate concerns dismissed. I really wanted to create a space to thrash these issues out and have it clearly explained to me why those concerns are wrong.

I am still reading through the lengthy Home Office report slowly which is fairly critical. I will add my comments on this with quotes as they occur to me. I will also post any other resources I come across.

It's so difficult to find anything about it, whether the conviction was quashed and that was it or whether there was a retrial and the outcome of that.

Apparently the complainant and accused were in a volatile 2 year relationship. I still don't understand why just because you had sex in a climbing frame 3 weeks before, the same person would not have raped you there in future or why that fact has any bearing on whether there should be reasonable doubt that they did.

Yes venus, all I could see was that it would add weight to it being true that they were in the climbing frame. (Presumably not disputed anyway) I couldn't see how the unusual location made a different point to them, eg, being in a bed together. I am admittedly tired so maybe missing it.

Datun I don't know if I am misunderstanding your post but I think the widespread emotional angry reaction is every bit as important. And those relating it to personal experience.

Tbh, I'm finding reading interesting - and I think we need to be more informed - but it does also feel (personally)like mental gymnastics to help deal with the conclusion this was a shit outcome. And who knows, it might be as useful to go throw a brick at parliament or the RCJ.

I know what you mean fucking. I just think that underneath all the legalese these are blatant attempts to smear the victim and play on ancient rape myths about unchaste women. And it should be challenged. I agree it's mental gymnastics but I guess that's law.

Hmm. It is. It has the authors name on document. I went straight from Google into the PDF so haven't even looked at the context of where they've placed it. I'll pm it.Maybe over cautious but don't want to make any errors that risk the wider discussion on MN.

I don't understand that either Hilary. I know that 6% of rape reports eventually end in convictions for rape and a further 7% end in convictions for "any offence".

But as you say, sexual assault is non consenting behaviour. I guess maybe there were other elements of non consenting behaviour in addition to the alleged rape? And these offences were successfully prosecuted but the rape not? I don't know.

That's what I was thinking in terms of the other offences. With regards to the sexual assault, as phr says on the other thread that juries are sometimes given a choice of rape or sexual assault, I guess that they might not opt for rape because they don't want to convict a man of rape but sexual assault isn't perceived as the same thing?

But they are different things? I suppose if a man denies penetration rather than claiming consent then a jury could judge that he did assault her in some other way but have reasonable doubt about the penetration.